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Marriage and Divorce

[This entry contains two subentries:

Legal Foundations

The Islamic view of women, gender relations, marriage, and divorce differs radically from those common to most Jāhilīyah (pre-Islamic) tribes of Arabia. In the period prior to Islam, patriarchy was generally on the rise in the area and the surrounding Roman and Persian Empires. In Arabia, female infanticide was a common Jāhilīyah practice that Islam prohibited. Women were treated as chattel transferable upon the death of the husband to his son. They had no inheritance rights. Furthermore, a male member of their family could force them to transfer any property they may own to him by simply imprisoning them at home (ʿadhl). All these practices were explicitly prohibited by the Qurʿan. Islam introduced a new regard for women and family life, and it regulated divorce to make it more equitable.

The Qurʿānic view of marriage and divorce can be summed up as “staying together on equitable terms or separating with kindness.” The Qurʿān also describes the marriage contract as mithaqan ghalithan (a solemn covenant). The Prophet Muhammad states that the marriage contract is the contract most worthy of fulfillment, and describes divorce as the most hated permissible act in the sight of God. Many jurists noted that God placed the marriage contract within the category of ʿibādat (which relate to God 's worship), and not within the category of muʿāmalāt, where contracts are usually placed. From the days of the Prophet, the marriage contract was used to articulate the rights and stipulations prospective wives required from their husbands, and hence offered a unique vehicle for the protection of women. This vehicle was part of an elaborate structure based on the Qurʿān, the Prophet 's sunnah (sayings and example), and subsequent juristic interpretations.

The Qurʿān is the foundation of all Islamic laws, including laws of marriage and divorce. Where a matter is not addressed specifically there, or where the application of a Qurʿānic verse to a certain situation permits several reasonable interpretations, jurists look to the Prophet 's sunnah for additional guidance. Where neither the Qurʿān nor sunnah address a matter explicitly, jurists resort to ijtihād, a system of reasoning and interpretation for which they have articulated several basic principles, one of which is that laws may change with time, place, and circumstances. This is what is happening today in Muslim countries. Just as the ancient ijtihād of jurists was significantly influenced by their milieu, so is modern ijtihād. Local gender, class, and political preferences have always help shape the jurists ’ worldview, which was reflected in the resulting jurisprudence. Today, existing jurisprudence needs to be revised to make it suitable for modern societies.

Originally, Muslim family law was not codified. Judges who were faced with a new issue sought guidance from the Qurʿān, sunnah, and the ijtihād of recognized jurists. When necessary, they also relied on their own ijtihād. Thus a common-law tradition developed in early Islamic societies. This tradition was pluralistic in that it permitted many schools of thought to thrive side by side in the same community, and members of the community were free to choose the school of thought that would govern their lives. Since there are many jurisprudential differences among the schools of thought, rulings under the various schools at times varied significantly. These variations, however, are fully acceptable in Islam. Differences of opinion were viewed as a sign of divine mercy, because they accommodate a wide variety of human needs and circumstances, even in the same community.

Codification.

Later European influence in the Muslim world led many countries to codify their laws. Codification led to the choice of a single official school of thought as its basis. By adopting official schools of thought, modern states significantly weakened the traditional pluralistic Islamic legal tradition. While most countries in the Middle East and North Africa have codified their laws, some Gulf countries, such as Bahrain and Saudi Arabia, continue to follow a weak form of the common-law tradition. Although they have not codified their family laws, they have nevertheless selected an official school of thought. In these jurisdictions, cases are not published, so judges tend not to be fully aware of relevant local precedents. As a result, judgments based on the same school of thought sometimes vary significantly even in similar circumstances. This situation created a problem of inconsistency that has elicited calls for codification.

One controversial area of jurisprudence across the modern Muslim world relates to the requirement of walī. Three of the major schools (Mālikī, Hanbalī, and Shāfiʿī) agree that a Muslim woman needs a walī (guardian, usually her father) in order to marry. But a well-established line of thought in another school, the Ḥanafī, views the mature woman who has reached puberty as capable of contracting her own marriage, with the walī playing a merely advisory role. Ḥanafī jurisdictions have traditionally ignored this aspect of Ḥanafī jurisprudence, but Morocco, a Mālikī jurisdiction, abandoned the walī requirement in an expansive reform of its family law promulgated in 2004.

Jaʿfarīs (Twelver Shīʿīs) view a mature woman who has reached puberty, whether a virgin or otherwise, as a full legal entity coequal with her male counterpart. She is considered legally competent to make her own marriage decisions and even to conclude her own marriage contract, regardless of her father 's approval and the social station of the prospective husband.

One reason for the preponderance of patriarchal interpretations in the Islamic juristic tradition is the exclusion of women from judicial and religious roles. This exclusion flies in the face of early precedents. For example, ʿĀʿishah, the wife of the Prophet, and other Muslim women played leading roles in the transmission of sunnah and the interpretation of law. Based on such precedents, scholars at al-Azhar, a major center of Islamic learning in Cairo, provided in 2007 an opinion favoring significant expansion of the scope of judicial roles available to women. Years before that, al-Azhar University had admitted women. In Morocco, the first class of female religious teachers (murshidāt) graduated in 2006. Generally, women scholars around the Muslim world are increasing in number and, together with male scholars, are discarding outdated patriarchal assumptions. As a result, the long-term effect that the exclusion of women has had on Islamic jurisprudence, especially in the area of family law, is now being reversed.

Polygyny.

For example, the 2004 Moroccan amendments finally recognized the wife 's right to repudiate her husband, if he had transferred that right to her (tamlīk). Another example is that of polygyny. All schools of thought have interpreted the Qurʿān as permitting polygyny as long as certain conditions of fairness are observed. The Tunisian Personal Status Code (1956, as amended) prohibits it. This prohibition, along with other departures like the one discussed above, has been viewed by many as a reflection of Western colonial influence. Tunisian jurists in fact relied on the Qurʿān, sunnah, and major secondary sources in developing their arguments for prohibiting polygyny. It is, however, probably true that the Tunisian desire to reexamine its position on this issue was motivated by external Western influence. While Morocco has not prohibited polygyny, recent amendments to its code have imposed stringent conditions on polygynous marriages by using alternative traditional jurisprudence.

Another more effective approach to barring polygyny would be for the woman to stipulate in the marriage contract that her prospective husband may not marry a second wife. Unfortunately, the validity and effectiveness of this stipulation varies with the school of thought. Shāfiʿīs, for example, reject it as contrary to marital rights flowing from the marriage contract, but they view the rest of the contract containing the stipulation as valid. This result is quite harsh for a woman bent on protecting her marriage from polygyny.

Ḥanafīs also regard this condition as null and void, but as an inducement for women to marry, they recognize the validity of a condition in the marriage contract that reserves for the woman the right to divorce her husband at her option. Mālikīs accept as valid the condition not to take a second wife, but they discourage it. Under the 2004 amendments to the Moroccan code, the woman 's right to include such a stipulation in the marriage contract has been recognized. In the absence of such stipulation, the code requires the informed consent of both wives, and gives the first wife the right to divorce for harm.

Divorce.

Under all schools of thought, a woman may obtain divorce by returning to her husband her mahr (marital gift), or by dropping all claims to it, but she is also required to acquire her husband 's consent to her action. This form of divorce, called khulʿ, is based on a prophetic precedent. The requirement to refund the mahr may impose a hardship on a woman of modest means if she has already expended her marital gift, but it guards against the woman profiteering through marriage. The consent requirement, however, presents a more significant and often insurmountable obstacle to khulʿ. It has also been used by husbands for profiteering. After careful review of early precedents, al-Azhar produced an opinion that eliminated the consent requirement as unwarranted. Relying on this opinion, the Egyptian Code was revised in 2000. As a result, khulʿ has become a more viable exit strategy for married women in these jurisdictions. Alternatively, women may request a judicial divorce, which can be a lengthy procedure but tends to preserve for the woman her mahr rights.

One line of thought among Hanbalīs is closest to that of the Prophet in its treatment of the marriage stipulation barring the husband from taking a second wife. The Prophet stated that one 's ʿuhūd (contractual promises or undertakings) must be fulfilled and that the ʿuhūd most worthy of fulfillment are those of the marriage contract. Hanbalīs view as valid this stipulation and all other marital contract stipulations which are not incompatible with Islamic law or the object of marriage. Furthermore, they also signal the seriousness of violating such ʿuhūd by giving the party whose marriage stipulation has been violated the option of voiding the marriage (faskh). By contrast, Hanafīs, for example, specify a limited monetary remedy for such violations.

Other laws relating, for example, to mutʿah (a form of temporary marriage accepted by Jaʿfarīs), spousal maintenance, the ability of the wife to work outside her home, her financial rights, the role of the husband in the family, the duties of the wife in a marriage, and child custody, have posed challenging questions to Muslim jurists in modern societies. In response, a movement to reinvigorate ijtihād and modernize family law in accordance with the Qurʿān and sunnah is taking root around the Muslim world, and it includes capable women jurists.

See also FAMILY; FAMILY LAW; MUTʿAH; POLYGYNY; and WOMEN AND ISLAM, subentry onROLE AND STATUS OF WOMEN.

Bibliography

  • Browning, Don S., M. Christian Green, and John Witte, Jr., eds.Sex, Marriage, and Family in World Religions. New York, 2006. The Islamic section is co-edited by Azizah al-Hibri.
  • Hibri, Azizah Y. al-. “Muslim Women's Rights in the Global Village: Opportunities and Challenges.”The Journal of Law and Religion15 (Fall 2001): 29–81. Also at www.karamah.org/articles.htm.
  • Hibri, Azizah Y. al-. The Nature of the Islamic Marriage: Sacramental, Covenantal, or Contractual. In Covenant Marriage in Comparative Perspective, edited by John Witte, Jr. and Eliza Ellison. Grand Rapids, Mich., 2005.
  • Nasir, Jamal J.The Status of Women Under Islamic Law and Under Modern Islamic Legislation. 2d ed.London, 1994.
  • Welchman, Lynn. Women and Muslim Family Laws in Arab States. Amsterdam, 2007.
  • Zaidan, Abdul Hakim. Al-Mufassal fi Ahkam al-Marʿah wa al-Bait al-Muslim (Detailed Account of Rules relating to Women and the Muslim Household). 2d ed., 10 volumes. Beirut, 1994.

Azizah Y. al-Hibri

Modern Practice

Rules and procedures regarding marriage and divorce are stipulated in the Qurʿān and ḥadīth (Prophetic tradition) and regulated through Islamic law. Laws relating to marriage and divorce are thus part of the body of Islamic personal status law, the only aspect of Islamic law that has been retained nearly intact at the beginning of the twenty-first century.

Islamic Legal Requirements.

Marriage in Islamic law is formalized by a contract (nikāḥ) between the two principals or their proxies. The contractual nature of an Islamic marriage reflects Islam 's outlook on marriage as a civil contract—not a religious sacrament—between two parties, which legalizes sexual relations and confers certain rights and responsibilities upon both parties. The essence of the marriage contract is a verbal exchange—legally characterized as offer (ijāb) and acceptance (qubūl)—between the two parties. Although most Muslim states require that marriages be registered in court, a written contract doesn 't negate the requirement of a verbal exchange of ijāb and qubūl for the validity of a marriage, according to sharīʿah.

In modern practice, the contract is concluded between the legal guardian of the bride—usually her father—and the prospective husband. The imam or judge verifies that the bride has indeed authorized her guardian to act on her behalf in marrying her to the man concerned. In the Ḥanafī school, the bride can negotiate her own marriage contract without the presence of a walī or male guardian, although the three other legal schools stipulate the approval of a legal guardian as a condition for marriage. According to the main treatise of Ḥanafī jurisprudence, al-Hidāya, “A woman who is an adult, and of sound mind, may be married by virtue of her own consent, although the consent may not have been made or agreed to by her guardians; and this is the case whether she be a virgin or thayeba (previously married). This is the opinion of Abu Ḥanīfa and Abū Yūsuf, as appears in the Ẓāhir al-Rawāya” (Marghinani, 2006, Book VI, chapter 55, p. 491). According to the Ḥanafī opinion, because women possess the legal capacity to undertake transactions with their wealth, then they also possess the legal capacity to arrange their own marriage contract, as long as they are sane and possess discretion (al-Marghinani, 2006, Book VI, ch. 55, p. 491). A minimum of two witnesses—two men or two women and one man—must be present to witness the officiating of the marriage contract. The Mālikī school is the only Sunnī legal school that does not require the presence of witnesses as long as the marriage is publicized. The Shīʿah do not require the presence of two witnesses for the validity of the contract, but it is highly recommended (Nasir, pp. 13–14).

In sharīʿah, a woman 's consent is required for the validity of a marriage (“It is not permitted to the walī to force a virgin, who is a major, to marry” [al-Marghinani, 2006, ch. 55, p. 492]). A prophetic tradition asserts that “the woman who is widowed or divorced (thayib) shall not be married until her order is obtained, and the virgin shall not be married except after her permission” (Sahīh al-Bukhārī, Vol. 7, Book 62, No. 67). Therefore, the role of a legal guardian in undertaking a woman 's marriage contract is akin to the role of an agent whom she has given the power of attorney to fulfill the legal aspects of her marriage. The intent of the law in requiring a guardian 's approval for marriage is to secure a woman 's interests, even though this might not always be the case in practice.

Although classical jurists permitted a legal guardian (only the father or grandfather in most schools) to conclude the marriage contract of a minor girl or boy without their consent (wilāyat al-ijbār), contemporary jurists have strongly discouraged the act. Today, most countries have adopted legislation that explicitly forbids child marriages and forbids a guardian from compelling a woman into marriage. In Algeria, Iraq, Kuwait, Lebanon, Libya, Malaysia, Morocco, Somalia, Syria, Tunisia, and Yemen, forced marriages arranged by the guardian, even if it is the father, are illegal (Esposito, p. 100). Pakistan introduced penal restrictions to regulate underage marriages (www.law.emory.edu/IFL/legal/pakistan.htm). Nevertheless, even in classical Islamic law, both parties have the option of dissolving the marriage after puberty; the marriage cannot be consummated before puberty. Moreover, in classical law, the marriage of children was permitted only if it was proven to be in the interest of the child and concluded by a father who is not corrupt or unreliable (sayyiʿ al-tasarruf).

Matrimonial Gifts.

A woman is entitled to a mahr or bridal dowry immediately after the conclusion of the marriage contract. Although stipulating the mahr is not a condition for the validity of a marriage contract (Nasir, p. 44), the payment of a mahr is a legal requirement according to sharīʿah: “And give the women (on marriage) their dower as a free gift; but if they, of their own accord, remit any part of it to you, take it and enjoy it” (Qurʿān 4:4). The amount of the mahr is individually determined and traditionally is commensurate with the economic or social standing of the bride 's family. There is no maximum to the amount that a bride can request for her dowry. If the bride does not specify the amount of mahr in the contract, the amount is determined according to her family 's social status and in consideration of the amount received by other female agnate relatives (“The reasonable dower of the woman is to be estimated in the light of the dower of her sisters, paternal aunts and the daughters of paternal uncles, due to the saying of Ibn Masʿūd that ‘she is entitled to the dower paid to the women of her family without increase or decrease, and these are women related to the father ’ ” [al-Marghinani, 2006, p. 520]); the amount is not determined by the husband 's financial or social position. This is classified as mahr al-mithl and occurs if both parties cannot come to a mutual agreement on the mahr (“If one did not fix a dowry for her or one made a condition that she will not receive any dowry, she will receive what is typically received by similar brides [mahr al-mithl], if after consummation of marriage or death. She will receive a small gift [mutʿa] in case of divorce before consummation” [al-Mawṣilī, Abū Yaʿla. Al-Ikhtiyār li ta ʿlīl al-Mukhtār, 2/126]). Unlike pre-Islamic customs, the woman determines the amount of the dowry and she—not her parents—is entitled to receive the full amount. Like the contract itself, this requirement makes the woman a party to the contract, rather than the object of transaction. Although Islamic law stipulates that the mahr is the sole property of the bride, it is not uncommon for this right to be violated in certain tribal communities due to lack of enforcement of the law coupled with ignorance on the part of some women of their legal rights. In Bedouin communities especially, some women never receive the mahr or even know its amount.

The most common practice among Muslims today is to divide the mahr into an advanced portion (muqaddam) and a deferred portion (muʿakhar). The advanced portion is paid before consummation and the deferred portion is paid at a time specified in the contract or in the event of divorce or death. Although this practice has no basis in the Qurʿān or Prophetic tradition, its origins can be traced as far back as the second/eighth century C.E. The custom of dividing the mahr into advanced and deferred portions arose to meet certain social and economic needs, and eventually became the prevailing norm in the Middle East (Rapoport, “Matrimonial Gifts,” pp. 1–36). A lack of consensus exists among the legal schools on the validity of postponing the deferred portion of the mahr indefinitely. Imām Mālik, the founder of the Mālikī legal school, prohibited the postponement of the mahr to an unknown date such as divorce or death (Rapoport, “Matrimonial Gifts”, p. 8). Imām Mālik held that the entire mahr was payable immediately following the marriage contract. One of the prominent jurists of the Ḥanafī school, Muḥammad ibn al-Hasan al-Shaybānī, however, advised brides to allow the deferral of a portion of the mahr in order to deter their husbands from arbitrary divorce or to hold them accountable to promises they made. Because the wife is entitled to request the deferred mahr at any time (unless its due date was specified in the contract), the large sum of money that a husband would be required to pay if his wife demanded it functioned as a deterrence from violating written or unwritten agreements of the marriage. Based on legal documents and literature, there is enough evidence to suggest that women deferred a portion of the mahr exactly for this reason (Rapoport, “Matrimonial Gifts,” p. 12). As Yossef Rapoport notes in his analysis of matrimonial gifts in early Islamic history, “Al-Shaybani regarded the deferred sadaq [mahr] as a fine or penalty on the husband, a deterrent against violations of marital arrangements that were not formally inserted in the marriage contract” (Rapoport, “Matrimonial Gifts,” p. 13). Furthermore, because the deferred portion of the mahr became due immediately on divorce, the amount left to be paid deterred some husbands from exercising their right to unilateral divorce or other legal privileges.

The practice of dividing the mahr into advanced and deferred portions is widespread throughout the Muslim world today. Nonetheless, it does not carry the same level of deterrence as it did in the past due to the disintegration of the Islamic legal system and the reluctance of many women to demand their rights in court. For most people, the mahr remains a considerable factor in determining marriage alliances, and in some regions the cost has risen to the point that the mahr now constitutes a barrier to marriage. In the Gulf region, where value of the average mahr may be from U.S. $10,000 to $25,000, private Muslim charities and government agencies offer contributions toward the mahr for the benefit of men who would otherwise have no hope of marriage. The rationale for these donations is that marriage is considered a religious duty in Islam. Among many Westernized and especially two-income couples, however, the mahr is considered as only a token payment to satisfy the religious requirements of marriage.

Marriage Contract Stipulations.

Women's practice of including stipulations in their marriage contract has existed from early Islamic history onwards (Jennings, pp. 87–89). The most common stipulations that women applied in their contracts during the Ottoman period were that they not be transferred from their city or parents ’ home; that their husbands not travel from home for long periods of time; that their husbands not physically harm or humiliate them; and that their husbands not marry another wife. If the wife could prove that her husband had violated a stipulation in the contract, she was entitled to a divorce without her having to give up any financial rights (Abdal-Rehim, especially pp. 98–99, 102–103, 105, 107, 110). In Nelly Hanna 's study of marriage contracts among merchant families in seventeenth-century Cairo, she found that about one-third of the contracts included two or three stipulations. Despite the different of legal opinions on stipulations, judges from all four Sunnī schools of law respected these stipulations and registered marriage contracts containing stipulations (Hanna, pp. 143–154). Modern legislation in Algeria, Bangladesh, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Syria, Pakistan, and Tunisia uphold the right of women to stipulate conditions in their marriage contracts, as long as they do not contravene the roots or basis of marriage (Nasir, pp. 15–16; Esposito, p. 103; Carrol, pp. 277–309, 279–280). Nevertheless, evidence indicates that women's practice of inserting stipulations in marriage contracts has diminished among Muslim marriages today.

The Ḥanafī school is the strictest of the four Sunnī schools regarding the use of stipulations in marriage contracts. The only valid stipulations, according to this school, are those that affirm rights and duties that are inherent to the marriage contract. However, the Ḥanafī school states that the husband has a religious duty to fulfill any conditions that he signed on to that do not contradict his legal rights, based on the Qurʿānic verse, “And fulfil (every) engagement (promise), for every engagement will be inquired into (on the day of Reckoning)” (Sūrah al-Isra, 34). Nevertheless, he is not legally bound to fulfill them; hence, the courts cannot enforce the conditions and the wife cannot demand to nullify the marriage based on lack of fulfillment. The most lenient of the four schools regarding the use of stipulations in marriage contracts is the Ḥanbalī, while the Mālikī and the Shāfiʿī schools stand somewhere in the middle. The Ḥanbalī school recognizes the validity of stipulations that prevent the husband from marrying additional wives; transferring his wife from her house or city; separating her from their children or her parents; or other similar stipulations. According to the Ḥanbalīs, these stipulations are valid and binding (liizim). If the husband violates them, his wife has the right to demand an annulment (faskh) of her marriage whenever she wishes (Shaham, p. 463). Current legislation in Jordan, Syria, and Kuwait grants the wife the right to divorce without giving up her financial rights if her husband violated any of the stipulations in the contract (Nasir, pp. 15–16).

Tying the Knot: Modern Muslim Practice.

Muslims seek marriage partners through a variety of means, which are influenced by culture, family norms, and social status. In the Middle East, Africa, and South Asia, families play a central role in seeking suitable partners for their sons or daughters. Most often, women work through social alliances to identify suitable wives for their sons and to introduce unmarried daughters to the mothers of eligible sons. To a large extent, in the Muslim world, the realities of modern life have superseded the traditional mode of arranged marriages, as men and women now meet and choose each other through contact in universities, in the workplace, through mutual friends, or during travel abroad.

Among second-generation and indigenous Muslims in the United States, young men and women seek potential life partners through social networks, Muslim college organizations such as the Muslim Students Association, the mosque, or more formal means such as matrimonial services offered by Muslim organizations like the Islamic Society of North America. Today, an increasingly popular way of meeting members of the opposite sex is matrimonial or networking Web sites such as www.naseeb.com or www.zawaj.com. Their appeal to many young Muslims in the West is the fact that they meet people based on their interests, hobbies, and friends, rather than looks or family arrangements. The founder of Zawaj.com, Wael Abdelgawad, told the Washington Post, “It 's not about falling in love; it 's about meeting someone who is compatible and has the same goals in life and then getting married. Love grows, if you have things in common and you have the same goals in life” (Cho). Currently, 3,511 Muslim women and 8,732 Muslim men (more than twice as many men as women) have uploaded matrimonial profiles on Zawaj.com and about 6,000 use the site on any given day (Cho).

Saara Sheikh, who found her soul mate through Naseeb, said that the Web site presented the perfect compromise between dating and arranged marriages. Since devout Muslims shun unchaperoned dating, Web sites such as Naseeb allow them to meet members of the opposite sex and converse with them without breaking Islamic traditions. An Islamic version of Friendster, Naseeb provides “a religious compatibility quiz that allows users to display their responses to questions such as how frequently they pray, whether it is inappropriate to have dancing or music at weddings and how they would react if alcohol was served at a company party” (“Muslims find compromise in Web matches,” Grand Rapids Press, March 6, 2004: B3). Young Muslims can search for people through their friends ’ networks and meet prospective partners who are connected to them through four degrees of separation (i.e., the friend of your friend 's friend). This component adds a level of security and gives young Muslims more confidence in meeting people online. Currently, 323,202 men and women are registered members of Naseeb (www.naseeb.com). An estimated 84 percent of Naseeb 's users are in North America and the United Kingdom (“Muslims find compromise in Web matches,” Grand Rapids Press, March 6, 2004: B3).

Wedding ceremonies often reflect family traditions or regional customs more than they reflect religious traditions. Beyond the marriage contract, there is no formal wedding ceremony in Islam, although Prophet Muḥammad encouraged Muslims to publicize and celebrate marriage through a wedding feast (Narrated Anas: The Prophet saw the traces of Sufra [yellow perfume] on Abdur-Rahman bin  ‘Auf and said, “What is this?”  ‘Abdur-Rahman, said, “I have married a woman and have paid gold equal to the weight of a datestone [as her mahr]. The Prophet said to him, “May God bless you: Offer a wedding banquet even with one sheep.” [Sahīh al-Bukhārī, Volume 7, Book 62, Number 85]). In the Arab world, it is common practice to separate the marriage contract ceremony from the actual wedding. The marriage is formalized in the first ceremony, which often involves only relatives and close friends, whereas the actual wedding (the publicizing of the marriage) is a larger celebration involving a greater number of guests. Depending on the religiosity of the bride and groom or their families, the wedding might be mixed-gender or gender-segregated. In South Asia, wedding celebrations are divided into three parts: the mendi is the all-female celebration before the marriage contract; the nikāḥ is the official marriage ceremony, which legalizes the marriage before God; and the walīmah is a large celebration that fulfills the Prophetic sunnah of publicizing the marriage, and may take place before or after consummation. In the United States, more and more devout Muslims are opting to separate their marriage contract ceremony (nikāḥ) from their wedding, when the marriage is actually consummated. The time period between the nikāḥ and wedding allows young couples to spend time together without the presence of a chaperone and to get to know each other on a more intimate level before moving in together.

Financial Maintenance.

Financial maintenance is the responsibility of the husband and becomes incumbent from the date of the marriage contract, based upon the Qurʿānic verse, “Men are the protectors and maintainers of women, because God has given the one more than the other, and because they support them from their means” (Qurʿān 4:34).

Sharīʿah and the modern statutes of most Muslim countries establish that a wife has the right to be provided with housing, food, clothing, toilet necessities, medicine, doctor and surgeon fees, baths, and servants, if she is accustomed to having servants (Nasir, p. 59). There is a virtually unanimous consensus among Muslim jurists and modern statues that financial maintenance is the legal right of a wife, regardless of her own financial means or her religion (Nasir, pp. 59–60). The only exceptions to this position are the Ẓāhirīs and the modern laws of Tunisia and Somalia. According to Somalia 's and Tunisia 's family law, the wife shall also contribute to the maintenance of the family if she has any means (Nasir, p. 60). In contrast, the legal codes of Jordan, Kuwait, Lebanon, Malaysia, Pakistan, Syria, and Yemen legislate that unpaid maintenance is a debt the husband accrues and takes precedence over any other debt he owes (Esposito, p. 96). Malaysia actually enforces this by requiring the husband 's employer to deduct the maintenance from his paycheck and give it to his wife, in cases when the court has ruled in her favor (Esposito, p. 96).

According to classical law, a woman 's right to financial maintenance is contingent upon three conditions:

  • 1.  that is she is sexually available to him at all lawful times;
  • 2.  that she obey him in all lawful things for the duration of the marriage; and
  • 3.  that their marriage contract is valid (Nasir, pp. 60–61).

These conditions have been incorporated in the modern legislation of most Muslim-majority countries. However, the interpretation of these conditions may pose a dilemma. For example, does the absence of a woman who works without her husband 's permission constitute a failure to make oneself available to one 's husband? Jordanian, Syrian, Iraqi, and Egyptian legislation says that it does and releases the husband from the obligation of maintenance, even if the wife went to work because she has a profession that cannot be interrupted at will, or because the family is in need of her income. Because of discrepancies between the intent of the law and the letter of the law as well as changing social and cultural realities, modern legislation has not resolved or alleviated the dilemma of unjust consequences that result from a rigid application of the law.

Divorce.

Divorce is governed by specific rules and considerations. Although classical law entitles a man to repudiate his wife without cause in talāq divorce, modern legislation has significantly curbed such power by requiring the husband to register his divorce in court in order for it to be valid. Muslim countries as diverse as Algeria, Bangladesh, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Somalia, Syria, Tunisia, and Yemen require the registration or notarization of divorce in court (Esposito, p. 94). Algeria, Malaysia, Somalia, and Tunisia require that a court hearing of a divorce case refer the case to arbitration or reconciliation in adherence to the Qurʿānic injunction to allow time for reconciliation between spouses (Esposito, p. 94). This is the case regardless of which spouse petitions for divorce (the exception to this is Iran, where it curbs the man 's right to unilateral divorce by referring the case to reconciliation; Esposito, p. 94). In Iran, Pakistan, and Somalia, a husband 's right to unilateral divorce is also regulated by the condition that the court attempt to arbitrate or reconcile the case before granting divorce. Malaysia requires arbitration if the other party does not agree to the divorce.

Under classical law, repudiation by a husband entitles the wife to the remaining portion of her mahr (often, the deferred portion), and maintenance during her ʿiddah (waiting period), which is equivalent to three menstrual cycles. If the marriage has not been consummated, a woman does not observe a waiting period and receives a mutʿa (a suitable gift) and half of her full dowry (Qurʿān 33:49; Qurʿān 2:236; Qurʿān 2:237. The Ḥanafī school asserts that a divorced woman is entitled to a mutʿa whereas the Mālikī school disagrees.). The purpose of this waiting period is to provide the husband with an opportunity to reconcile and return to his wife (if the divorce is not irrevocable—it is not the third of three consecutive divorces), or to determine if she is pregnant and, if so, to establish the child 's paternity. In the twentieth century, most Muslim countries enacted reforms to address the financial hardships endured by divorced women as a result of the limited financial support they receive under classical law (Esposito, p. 97). Syria was the first country to grant women three year's worth of maintenance, aside from maintenance during the waiting period, if they have been arbitrarily divorced. Jordan, Kuwait, and Yemen granted divorced women the right to receive financial maintenance from their ex-husbands for one year after the waiting period, whereas Egypt grants her two year's  worth of financial maintenance with no upper limit (Esposito, p. 97). Malaysia divides assets acquired by joint effort during marriage, and also may order the division of assets acquired by the husband alone in consideration of the wife 's nonmonetary contributions such as housework and caring for family, although she still receives a smaller portion. Tunisia and Algeria allow the judge to determine the amount of compensation a divorced woman should receive, which could include housing and reparations for damages rendered. Libya and Somalia grant the injured party—whether male or female—financial compensation for divorce (Esposito, p. 97).

A woman does not have the same right of repudiation unless she specifies the right to unilateral divorce in her marriage contract or unless her husband grants her the right to unilateral divorce any time after the marriage contract (Nasir, p. 72; al-Hidāya, p. 593). This type of divorce is called talāq tafwīḍ (delegated divorce). For example, according to Pakistan 's 1961 Muslim Family Laws Ordinance, the marriage contract asks  “whether the husband has delegated the power of divorce to the wife; if so, under what conditions.” Women are entitled to two other kinds of divorce, khulʿ divorce and tafrīq. In the former, a woman can dissolve her marriage by returning the dowry or waiving her right to the deferred dowry, and sometimes by paying an agreed-on sum of money to her husband. In the second type of divorce, a wife can initiate her divorce by petitioning the court, but such divorce is allowable on very limited grounds in classical law, such as impotence on the part of the male or desertion. Modern legislation in some countries has codified and slightly expanded the grounds on which a woman may petition for divorce to include injury or discord, a physical defect on the part of the husband, failure to pay maintenance, and absence or imprisonment of the husband. In Pakistan, a woman may obtain judicial khulʿ regardless of grounds, as long as she is willing to relinquish her financial rights (i.e., repaying her dower). In Egypt, the Procedural Personal Status Law passed in 2000 allowed women to obtain a divorce through khulʿ without their husband 's permission and without a husband 's right to appeal (as long as two attempts at reconciliation have been made) (Tadros).

Child Custody.

In Islamic law, custody of children goes first to the mother, but then reverts to the father after a son has reached at least seven years of age and a girl has reached at least nine years of age. Schools of law vary on the exact age at which a child 's custody transfers from the mother to the father, but the age range in Sunnī practice is seven to ten for a boy and nine to the onset of puberty or time of marriage for girls. Shāfiʿī law grants children the right to choose the custodial parent at age seven. Most modern legislation has extended the age under which a mother retains the right to child custody. In Morocco, a divorced mother has the right of custody until puberty for sons and until marriage for daughters. India and Pakistan grant divorced Muslim mothers the right to custody until age of seven for males (classical Ḥanafī position) and puberty for females. Jordan grants women the right to custody until the child—male or female—reaches puberty. Lebanon (Sunnī sect), Malaysia, Syria, and Tunisia grant a mother custody over boys until seven years and girls until nine years. In accordance with the Twelver Shīʿī law, Iran 's and Lebanon 's Shīʿī laws grant mothers custody over boys until two years and girls until seven years. Nevertheless, in nearly all Muslim states, a court can rule to extend a mother 's custody rights if it is deemed in the interest of the child. However, if the mother remarries at any time while her children are in her care, she jeopardizes her right to retain custody.

Polygyny.

The practice of polygyny, although allowed in most Muslim countries, has been seriously restricted by legal reforms enacted in the twentieth century. The most radical of these reforms has been in Tunisia and Turkey, where polygyny was abolished altogether. Most Muslim countries have adopted strict conditions for polygamy, such as court approval for the second marriage, which is contingent upon the husband 's proven ability to financially support two wives without decreasing the standard of living of his current wife and children; provide them with separate dwellings; and treat wives and children equally. In Malaysia and Pakistan, the court must provide a hearing with the existing wife or wives to determine whether or not a second marriage is justified and whether the husband would be able to meet the above-mentioned conditions (“Malaysia.” Emory Law School.
www.law.emory.edu/IFL/legal/malaysia.htm. A new Islamic Family Law bill passed in Malaysia in December 2005 could loosen the conditions a husband needs to meet for a polygamous marriage. “Pakistan.” Emory Law School.www.law.emory.edu/IFL/legal/pakistan.htm). In Indone-sia, the court will not authorize a second marriage without the permission of the first wife. Algeria, Bangladesh, Morocco, and Yemen all require notification of both the existing and future wives of the pending marriage (Esposito, pp. 101–102). Some countries, such as Jordan, however, do not require the notification of the existing wife for the approval of a second marriage, although the second wife must be notified of his married status. Somalia does not authorize a second marriage except in proven cases of a wife 's sterility (which the husband was unaware of at the time of marriage); incurable chronic or contagious illness; imprisonment for over two years; unjustified absence from home for more than one year, or a social necessity (“Somalia.” Emory Law School. www.law.emory.edu/IFL/legal/somalia.htm). Several states, such as Algeria, Egypt, Iran, Morocco, Syria, and Somalia, allow a woman to petition for divorce and seek compensation for the harm inflicted by her husband 's second marriage (with varying stipulations).

Legal Reform.

Despite modern legal reforms, family law in Muslim countries is one of the areas in greatest need of reform due to the discrepancies that exist between laws developed in the past and the changing reality of Muslim societies today. The structure of the family and the role of women in society have significantly changed with the advent of modernization and globalization. Islamic family law must be revisited in order to reflect such societal changes. In consideration of the Islamic revival taking place in much of the Muslim world, any effective reform of legislation related to family law must engage the Islamic tradition. Any discourse that fails to engage the Islamic paradigm upon which Muslim society operates will be unsuccessful in advocating for change or gaining legitimacy for its views. As the Islamic feminist scholar Asma Barlas writes, “It is safe to say that no meaningful change can occur in these societies that does not derive its legitimacy from the Qurʿān 's teachings, a lesson secular Muslims everywhere are having to learn to their detriment” (Barlas, p. 3).

As family law is the last bastion of Islamic law in most Muslim countries today, attempts to reform it encroach on sensitive territory of cultural authenticity and autonomy. As evidenced by recent campaigns to institute various gender reforms, any discussion on gender reform in the Muslim world quickly transforms into a debate on a Western “conspiracy” to infiltrate the native culture and to destroy Islamic values. The link is not baseless, however. The rhetoric of those advocating for female advancement in the Muslim world was historically entrenched in a discourse that propped Western civilization as the model to which the colonized Muslim world should look in its quest for gender reform and national advancement.

This rhetoric of “progress through the abandonment of native culture” became consistent and pronounced with colonial domination, as Leila Ahmed demonstrates in Women and Gender in Islam (p. 129). This implicit connection between women's advancement and Western cultural domination set the stage for the deeply ideological clashes between conservatives and liberals on the debate on women and legal reform.

Women activists have begun to realize that their language does not resonate with the majority of women in Muslim societies when they advocate for the abandonment of sharīʿah and its replacement with international or secular civil law, which is perceived as another attempt to impose foreign standards on Muslim societies. For example, research by the Gallup Organization reveals that many Muslim women appear to want a legal system that incorporates sharīʿah—those Islamic religious principles and values widely seen as governing all aspects of life—rather than one dependent on Western values. In a Gallup survey of twenty-two Muslim countries, majorities in twenty-one countries surveyed—Turkey was the exception—believe that “sharīʿah should be the only source of legislation” or “sharīʿah must be a source, but not the only source of legislation.”

Recognition of sharīʿah as the primary source of family law does not preclude its reform. The practice of adapting the formulation of Islamic law to a particular social reality is not new; indeed, it has characterized the formation of Islamic law since its origin. The diversity of legal opinions in Islamic tradition and the existence of tools for legal reform, in particular ijtihād (individual interpretation), have made Islamic family law open to reinterpretation and reform. Egypt 's successful and bold initiative to grant women the right to divorce without having to provide legal justification is an example of modern legal reform. Rather than call for the abandonment of sharīʿah, female activists and civil society groups instead operated within the framework of Islamic law by relying on an opinion in the Mālikī legal school to reform the law successfully in 2000. In 2004, the Moroccan parliament passed groundbreaking legislation to reform that nation 's family code, or Mudawana, which granted women equal status to men within a marriage, the right to initiate divorce, and the right to child custody under a broad range of situations. The new discourse of “Islamic feminism”—in which women's rights are framed within the larger context of reviving Islam 's egalitarian principles of justice and gender equity—enjoys a certain level of legitimacy and effectiveness in countries where religion has become the primary force of people 's identities.

See also FAMILY LAW and POLYGYNY.

Bibliography

  • Abdal-Rehim, Abdal-Rahman Abdal-Rehim. “The Family and Gender Laws in Egypt during the Ottoman Period.” In Women, the Family, and Divorce Laws in Islamic History, edited by Amira El-Azhary Sonbol. New York: Syracuse University Press, 1996.
  • Abderrazak, Moulay R ’chid. La femme et la loi au Maroc. Casablanca, 1991.
  • Ahmed, Leila. Women and Gender in Islam: Modern Roots of a Historical Debate. New Haven and London: Yale University Press, 1992. Examines family law and legal reform in a historical and social context; analyzes the impact of colonialism on the issue of “gender” in the Muslim world today.
  • Barlas, Asma. “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qurʿān. Austin: University of Texas Press, 2002. This work argues that secondary texts, not the Qurʿān, enabled the textualization of misogyny in Islam. Barlas examines the extratextual context of the production of Qurʿānic interpretation, arguing that classical exegetes were influenced by the patriarchal paradigm of the medieval period in which they lived, and calls for the application of a new hermeneutics that can restore the Qurʿān 's egalitarian values of gender equality.
  • Carrol, Lucy. “Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife.” Modern Asian Studies16, no. 2 (1982): 277–309, 279–280
  • Cho, David. “For Muslims, Courtship Enabled by the Internet.”Washington Post, June 6, 2004: C01.
  • Esposito, John L.Women in Muslim Family Law. Syracuse, N.Y: Syracuse University Press, 2001. This second edition is an excellent overview of the origin, development, and reform of Islamic family law. It provides a concise description of classical legal rulings related to the major areas of family law, and compares those rulings with modern legislation in Muslim countries.
  • Fluehr-Lobban, Carolyn. Islamic Law and Society in the Sudan. London: F. Cass, 1987. Excellent discussion of Islamic family law in theory and in practice, based on actual court cases.
  • Hanna, Nelly. “Marriage among Merchant Families in Seventeenth-Century Cairo.” In Women, the Family, and Divorce Laws in Islamic History, edited by Amira El-Azhary Sonbol. New York: Syracuse University Press, 1996.
  • Islamic Family Law Project. Emory University School of Law. www.law.emory.edu/IFL 2002. This provides a valuable exposition of the origins of family law in every Muslim-majority country, important reforms, and the state of current legislation (as of 2002) in matters of marriage, divorce, child custody, and so on.
  • Jennings, R. C.“Women in Early Seventeenth Century Ottoman Judicial Records: The Sharīʿa Court of Anatolian Kayseri.”Journal of the Economic and Social History of the Orient18 (1975): 87–89.
  • Marghinani, Ali ibn Abi Bakr. Al-Hedaya: Commentary on the Islamic Laws. Translated by Charles Hamilton. New Delhi: Kitab Bhavan, 1985.
  • Marghinani, Burhan al-Din al-Farghani al-. Al-Hidāya—The Guidance: A Classical Manual of Ḥanafī Law. Vol. 1.Trans. Imran Ahsan Khan Nyazee. Bristol: Amal Press, 2006. A contemporary translation of, arguably, one of the most important manuals of Islamic law. Authored by the twelfth-century Ḥanafī jurist al-Marghinani, al-Hidāya is the main treatise of the Ḥanafī legal school, which expounds on the legal reasoning behind the school 's particular rulings. In the area of Muslim family law, it has been the major source relied on by courts in Pakistan, Bangladesh, and India.
  • Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. 4th ed.Boulder, Colo.: Westview Press, 2007.
  • Moors, Annelies. “Debating Islamic Family Law: Legal Texts and Social Practices.”In Social History of Women and Gender in the Modern Middle East, edited by Margaret Meriwether and Judith Tucker. Boulder, Colo.: Westview Press, 1999. This important work challenges common presumptions on the patriarchal nature of classical Islamic law and points to the loss of legal pluralism and flexibility as a result of modern legal reforms.
  • Nasir, Jamal J.The Status of Women under Islamic Law. London: Graham & Trotman Ltd., 1990. The author 's unique background as a renowned lawyer and former Minister of Justice in Jordan provides him with rare insight on the development of Islamic family law and its application in modern legislation. The work provides an extensive overview on classical law and modern legislation related to marriage, the bridal dowry, financial maintenance, divorce, fosterage, and custody.
  • Rapoport, Yossef. Marriage, Money and Divorce in Medieval Islamic Society. Cambridge, U.K.: Cambridge University Press, 2005. Like Annelies Moors 's work, this book demonstrates that Muslim women in medieval history had more agency in some aspects of marriage and divorce than their modern counterparts. This well-documented book demonstrates that medieval Muslim women enjoyed access to divorce and the ability to obtain gainful employment and control liquid assets in the family, which ultimately gave them more control over their own lives.
  • Rapoport, Yossef. “Matrimonial Gifts in Early Islamic Egypt.”Islamic Law and Society7, no. 1 (2000): 1–36. A very valuable essay on the development of deferred bridal dowries and patterns of divorce in early Islamic Egypt, which are reflective of broader trends in early Islamic history.
  • Shaham, Ron. “State, Feminists and Islamists: The Debate over Stipulations in Marriage Contracts in Egypt.”Bulletin of the School of Oriental and African Studies62, no. 3 (1999): 462–483. The essay examines the discourse of Islamic scholars and feminists in Egypt surrounding a 1995 proposal for a new marriage contract. The essay also provides valuable information on the legal background of marriage contract stipulations and the evolution of this practice throughout Ottoman history to the modern period.
  • Sonbol, Amira El-Azhary, ed.Women, the Family, and Divorce Laws in Islamic History. New York: Syracuse University Press, 1996. A compilation of eighteen essays by historians of differing origins and perspectives, this work provides rich archival material on sharīʿah courts and family law that challenge common presumptions on the status of women in different periods of Middle East history.
  • Tadros, Mariz. “Khulʿ law passes major test.”Al-Ahram Weekly, Issue No. 617 (December 19–25, 2002).
  • Tucker, Judith. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of California Press, 1998. This original and valuable study of court records and legal opinions (fatwās) in seventeenth- and eighteenth-century Palestine and Syria demonstrates the flexibility and fluidity of Islamic law as well as the legal system 's sensitivity to the practical needs of women, men, and children. As such, the work trumps prevailing presumptions about the nature of Islamic family law and its historical impact on women's lives.
  • Welchman, Lynn. Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy. Amsterdam: Amsterdam University Press—ISIM Papers series, 2007. This work examines the codification and subsequent reform of Muslim personal status law in Arab states with a particular focus on registration requirements, capacity and consent (for marriage), polygyny, divorce, and custody.
  • Welchman, Lynn. Women's Rights and Islamic Family Law: Perspectives on Reform. London and New York: Zed Books, 2004. A product of an ongoing project on Islamic family legal reform by Emory University School of Law, this volume explores the current realities of Islamic family law and their impact on women's rights. The book contrasts three country cases: Egypt, Palestine, and Muslim communities in the United States.

Hadia Mubarak

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